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The EEOC recently released an updated Covid-19 Technical Assistance Publication titled “What You Should Know About COVID-19 and the ADA, the Rehabilitation, and Other EEO Laws.”  The guidance document is must reading for HR administrators and directors.  It contains a Q&A Section of Common Workplace Questions and addresses how employees return to work and requests for accommodation.  It also addresses harassment of employees who are or are perceived to be of Chinese or other Asian national origin.  While we highlight some issues below, the guidance is very comprehensive and answers a lot of employment-related questions.  Here are some highlights:

  • During a pandemic, ADA-covered employers may ask employees if they are experiencing symptoms of the pandemic and may measure an employee’s body temperature.
  • Employers should rely on the CDC, other public health authorities, and reputable medical sources for guidance on emerging symptoms associated with the disease when choosing questions to ask employees to determine whether they would pose a direct threat to health in the workplace.
  • Employers may require an employee to stay home if they have symptoms of COVID-19.
  • Employers may also require a doctor’s note certifying fitness for duty and may administer an “accurate and reliable” COVID-19 test before allowing a person to return to the workplace.
  • Applicants may also be screened and tested.
  • If the applicant has COVID-19 or symptoms of it, the employer may withdraw the job offer.

The EEOC document contains a lot of great information about accommodation requests and suggested accommodations.  It recommends that, in discussing accommodation requests, employers and employees consult the Job Accommodation Network (JAN) website for types of accommodations, www.askjan.org.  JAN’s materials specific to COVID-19 are at https://askjan.org/topics/COVID-19.cfm

Also included are frequently asked questions about COVID-19 and age discrimination, pregnancy discrimination, and sex discrimination involving employees with caretaking or family responsibilities.
In response to inquiries from the public, the EEOC has also provided resources on its website related to the pandemic in an employment context.  More information is available at www.eeoc.gov.

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